[1] Whether a person is eligible to raise an objection to the decision of an auction court on the progress of the auction procedure solely on the ground that he/she is scheduled to comply with the auction procedure (negative)

[2] In order to seek cancellation of the re-auction procedure based on Article 648(4) of the Civil Procedure Act, whether the former successful bidder is granted the special payment method by the method of assumption of an obligation under Article 660(1) of the same Act (negative)

[1] A person who intends to raise an objection against the decision of the auction court on the progress of the auction procedure shall, in principle, have a legal interest in the decision of the auction court. Thus, the ground that the auction court is scheduled to comply with the auction procedure cannot be said to have a legal interest in the auction procedure. Thus, an objection against the execution is not appropriate.

[2] The purport of Article 648(4) of the Civil Procedure Act stipulating the cancellation of the re-auction procedure is that the re-auction procedure is due to the failure of the successful bidder to pay the price of the pre-auction, and so long as the former successful bidder intends to fully pay the price of the pre-auction procedure, it is reasonable for the former successful bidder to take over the initial auction procedure and receive the price of the re-auction procedure for the prompt progress of the procedure, rather than repeating the re-auction procedure requiring the time of time. In light of such legislative intent, in order for the former successful bidder to seek the cancellation of the re-auction procedure based on the above provision of the Act, the method of special payment by the method of assumption of obligation under Article 660(1) of the same Act cannot be allowed.

[1] Articles 504 and 607 of the Civil Procedure Act / [2] Articles 648(4) and 660(1) of the Civil Procedure Act

[2] Supreme Court Order 91Ma500 dated June 9, 1992 (Gong1992, 2111)

Namyang Tourism Co., Ltd. (Attorney Han-ho et al., Counsel for the defendant-appellant)

Other (Appellants) 1 and 1 others (Law Firm Hank, Attorneys Cho Jae-sik et al., Counsel for the plaintiff-appellants-appellants-appellee)

Seoul District Court Order 99Ra1720 dated April 27, 1999

The part of the order of the court below against the order of the non-party 1 corporation is reversed and the other party's appeal is dismissed. The re-appeal against the counter-appellant 1 is dismissed.

The grounds of reappeal are examined (to the extent of supplement in case of those written in the grounds of reappeal and the grounds of reappeal that have been submitted with an excessive period).

1. Case summary

(1) According to the record, on February 29, 196, the auction court of this case rendered a ruling of compulsory commencement of auction as to the real estate of this case on February 29, 1996 and rendered a ruling of permission for successful bidding as to the re-appellant who became the highest bidder on May 16, 1997; (2) however, the auction court failed to pay the above price to the re-auction on two occasions; (3) the auction court decided that the minimum auction price on January 6, 1999 was reduced to 23,73,820 won; and (3) the re-auction order was revoked on January 21, 1999; and (4) the re-auction order was revoked on the same date as the date of auction order of this case to the Re-auction; and (4) the re-auction court decided that the re-auction order of this case was lawful by submitting the counter-party 16-party 4 of the Civil Procedure Act to the court of auction procedure under the name of the counter-party 16 of this case.

2. Judgment of party members

A. As to the name of the other party corporation

In order to raise an objection against the decision of the auction court on the progress of the auction procedure, it shall, in principle, have a legal interest in the decision of the auction court, and the reasons that the auction court is scheduled to comply with the auction procedure shall not be considered to have a legal interest in the auction procedure. Therefore, there shall be no objection against the execution.

As long as the auction court's decision to revoke the re-auction procedure of this case was defective, and as long as it was evident in the record that the other party's name cards company violated his legal interest to participate in the re-auction procedure of this case due to such decision, the court did not revoke the first instance court's decision which dismissed the other party's objection for the above reason, and revoked the above re-auction decision under the premise that the above other party's objection is qualified, the order of the court below erred by misapprehending the legal principles as to the applicant's standing in the objection to the execution.

B. As to the other party (objecter) 1

(1) In light of the records, since the other party 1 is an applicant for double auction of the real estate of this case, the other party 1 is an interested party in the auction procedure of this case which is initiated by the preceding auction request. Accordingly, even if the price awarded by the re-appellant 1 is higher than the minimum auction price in the auction procedure scheduled for the second time when the other party 1's objection to the execution of this case is accepted, the other party 1 does not have any interest in the execution of this case, or the other party 1 (the opponent) has no interest in the other party 1, or the other party 1 has no person filing a purchase report at least at the price equivalent to the successful bid price during the re-auction procedure, the other party 1 can raise an objection or appeal on the execution of this case only after filing an application for purchase at the price and providing sufficient guarantee to the other party 1. Thus, the court below is justified in holding that the other party 1 is eligible to file an appeal, and it cannot be said that the court below erred by misapprehending the legal principles on the eligibility for an objection as asserted by the re-appellant.

(2) The purport of Article 648(4) of the Civil Procedure Act, which provides for the cancellation of the re-auction procedure, is that the re-auction procedure is due to the failure of the successful bidder to pay the amount of the obligation to pay the amount of the debt, so long as the former successful bidder intends to fully pay the amount of the money in the court, it is reasonable for the former successful bidder to take over the first auction procedure more than repeat the auction procedure requiring the time and receive the amount of the money promptly for the prompt progress of the procedure. In light of such legislative intent, in order for the former successful bidder to seek the cancellation of the re-auction procedure based on the above provision of the Act, the special method of debt acquisition under Article 660(1) of the same Act cannot be permitted. This is because, in the case of the above method, the amount of the debt taken over is determined on the date of distribution to the extent of the amount of the claim to be paid by the creditor on the date of distribution, and the lack of the legal amount of the acceptance or the additional payment of the claim to be made on the date of distribution.

According to the reasoning of the order of the court below, the court below revoked the decision of dismissal of the first instance court and the decision of revocation of re-auction of this case on the ground that the re-auction did not meet the requirements of revocation of re-auction procedure, even though the special payment method for the re-appellant's payment pursuant to the debt acquisition method under Article 660 (1) of the same Act is permitted for the re-appellant's payment pursuant to the debt acquisition method under Article 660 (1) of the same Act.

The order of the court below is justified in holding that the payment for the cancellation of re-auction has been erroneous in violation of the above legal principles, as stated in the reasoning of allowing special payment method by assumption of obligation, but the conclusion that the requirements for cancellation of re-auction have not been satisfied is justifiable. Therefore, the above erroneous judgment of the court below cannot be the ground for reversal of the order of the court below since it did not affect the result

In addition, the Re-Appellant’s assertion that the Re-Appellant did not properly examine because it did not provide the Re-Appellant with an opportunity to make a correction for additional payment is premised on the above legal principles and the dissenting opinion, and thus, it cannot be accepted, and there is no other error of law by misapprehending the legal principles as to the necessity of pleading as asserted by

3. Conclusion

Therefore, the part of the order of the court below against the order of the court below against the order of the court below as to the order of the non-party Lee Dong-dong Co., Ltd. is reversed and it is sufficient for this court to see this part. Thus, the appeal by the above other party is dismissed in order to maintain the decision of the court of first instance that rejected this part. The reappeal against the counter-party 1 is dismissed as it is without merit

Justices Lee Yong-hun (Presiding Justice)